Research On The Punitive Liquidated Damages

The liquidated damage is a modern civil and commercial contracts an important breach of relief,it itself has the dual nature of punitive and compensatory.The punitive liquidated damage,also known as the inherent meaning of liquidated damages is refers to the default behavior of the implementation of the punishment to the debtor.Scholars in the course of the study of punitive damages related issues continue to dispute,long-term failure to reach an agreement,which gives the author’s writing has brought some difficulties.In this paper,based on the stander definition of punitive liquidated due to breach of contract,through the comparative study of punitive damages in continental legal system and Anglo American legal system and the necessity of the existence of punitive damages in China,put forward a reasonable proposal for the construction of punitive damages system in our country.Punitive damages is one of the most important types of liquidated damages,should be clearly defined in the law.At present,on the punitive liquidated gold standard definition main responsibility for parallel and loss compared to that agreement theory and the synthesis of four kinds of theories,through comparison and analysis,the theory of responsibility in parallel as the punitive liquidated gold standard definition.Based on the punitive liquidated damages,the author makes a comparative study on the punitive damages in the continental law system and the common law system,due to the economic development,concept,idea of rule of law,there is a big difference,the countries of continental law system and Anglo American law system of punitive liquidated attitude are very different.In the countries of the continental law system to compensation for breach of contract for the principle,only in the individual situation to admit punitive liquidated damages;and in countries of continental legal system is different,the British and American legal system countries deny payment of breach contract has a dual nature,only admit compensatory liquidated damages.However,with the development of society,the countries of Anglo American law system began to reflect,the attitude to punitive liquidated damages also relented.China’s theoretical circles on the issue of punitive liquidated damages continue,support scholars believe that punitive liquidated damages punitive penalty due to breach of contract is the embodiment of free will,to better the performance of the contract and the guarantee of the dispute,is suitable for national conditions of our country;against punitive default gold scholars argued that punitive damages for breach of contract in violation of the principle of compensation in civil law,the rights and obligations between the parties is not fair.In addition,the current legislation of our country only provides compensation of liquidated damages,also did not specify the punitive liquidated damages,but has not explicitly prohibit punitive liquidated damages.In judicial practice,the cognizance of punitive damage and adjustment can not depend on,different standers. Therefore,the author believes that our country should establish punitive liquidated damages system as soon as possible.Our country should establish to compensate for the breach of contract mainly,punitive liquidated damages as a supplement of the liquidated damages system.The author believes that it should be clear in the legislation to recognize the punitive liquidated damages,and give full play to its role.However, everything has its two sides, punitive damages is also the case,we should give full play to its positive role at the same time, limiting the occurrence of adverse factors.This article mainly manifests in the following three aspects to the limit of punitive liquidated damages:one,a punitive liquidated damages should be by the parties in the contract expressly agreed by the parties.The parties in the contract agreed for punitive damages,and meaning of "responsibility parallel",can be found as punitive damages,prohibit the application of presumption of punitive liquidated damages.Second,punitive damages applicable conditions of gold.Based on different default form of punitive damages.he research, the author thinks that, punitive liquidated damages can apply to continue to perform,impossibility, refusal to perform and not completely fulfilled and all forms of breach of contract.In addition, different from the compensation for breach of contract,the principle of liability for punitive damages should adopt the principle of fault liability,the subjective fault of the parties as a necessary condition for default liability.Three, punitive liquidated gold adjustment rules.The author thinks that punitive liquidated gold limit the maximum shall not exceed 20 percent of the amount of the principal contract, the excess is invalid;when the punitive liquidated damages and a deposit and use,both the total nor more than 20 percent of the amount of the principal contract;and for maximum limit in the punitive liquidated damages are not adjusted.The full text is divided into four parts,the first part is the punitive liquidated gold outlined, this part mainly includes the evolution of gold of the punitive liquidated,punitive liquidated gold standard definition,punitive liquidated gold legal basis and punitive damages and compensation payments of four aspects of the relationship between the gold content of breach of contract;the second part is the comparative study of punitive liquidated damages,the comparative analysis of the continental legal system countries and regions on the provisions of punitive damages and the common law countries on punitive liquidated damages;the third part is the our country establish the necessity of punitive damages system,the author from the punitive liquidated the theory dispute in gold,China’s current legislation of punitive liquidated attitude of gold and China’s judicial practice of punitive liquidated gold attitude of our country establish the necessity of punitive damages system were demonstrated;the fourth part is the construction of the system of punitive damages in China,through to the analysis and study of the system of gold of punitive liquidated,the author in this part of our country put forward its own Suggestions for the construction of the system of punitive liquidated damages,including punitive liquidated damages legislation,the application of the punitive penalty due to breach of contract conditions and punitive liquidated gold adjustment rules etc.